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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bari v London Borough Of Waltham Forest [2001] EWCA Civ 1623 (29 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1623.html Cite as: [2001] EWCA Civ 1623

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Monday 29 October 2001

Monday 29 October 2001

JUDGMENT
1. LORD JUSTICE KEENE: There were, and strictly speaking still are, three applications before me by Mrs Shamin Bari to reinstate appeals against decisions of the Employment Appeal Tribunal. In each case permission to appeal has been refused before and in two of the three cases applications to reinstate have been refused before. This morning I gave permission to Mrs Bari's husband to speak on her behalf. He addressed me in respect of two of the three applications, but then became ill and is not fit now to continue with the third of the three applications. What I propose to do is to give judgments on the two applications which have been dealt with today, and to adjourn the third application for a date to be fixed.
2. I deal first with application number 200/3118. Mrs Bari seeks to reinstate her application for permission to appeal against a decision of the Employment Appeal Tribunal dated 7 July 2000. That application, plus one for an extension of time, came before Mummery LJ on 21 December 2000. There was no appearance by, or on behalf of, Mrs Bari. The Civil Appeals Office had sent a letter to her dated 28 November 2000, at her home address, notifying her of the hearing date. In her absence Mummery LJ dealt with the merits of the applications, basing his decision on the papers before him. He dismissed the applications.
3. Mrs Bari has since sworn an affidavit to the effect that, although she received the Court of Appeal order made by Mummery LJ, she had never received any notice of the hearing on 21 December 2000. She applied promptly on 4 January 2001 to have the matter reinstated.
4. The application derives from a claim made by Mrs Bari back in September 1996, alleging that the respondent local authority, which had employed her between July 1988 and 30 June 1996, had broken her contract in not backdating her membership of their pension scheme to the start of her employment, and in not providing her with information about the scheme. The Employment Tribunal refused this claim and the Employment Appeal Tribunal on 7 July 2000 rejected her appeal. They concluded that there was no breach of contract and, in any event, her claim was barred by the Limitation Act. Mummery LJ subsequently took the view that there was no arguable error of law in those decisions.
5. A number of points are raised in the grounds of appeal but this morning Mr Bari on behalf of his wife has focussed upon an error of law which he alleges, arising from the fact that this matter was dealt with by the Employment Tribunal by the chairman sitting alone. He argues that the Employment Tribunal was wrongly constituted. Reliance is placed on the decision in the case of Sogbetun v London Borough of Hackney [1998] IRLR 676 where the Employment Appeal Tribunal decided that, before a chairman sits alone in respect of any of the matters specified in the relevant section (which is section 4(3) of the Employment Tribunals Act 1996), the chairman must have evaluated the matters specified in section 4(5) and decided to exercise his discretion to sit alone. It is therefore argued that there was an error here which goes to the jurisdiction of the Employment Tribunal.
6. The position is that the chairman of the Employment Tribunal has an undoubted discretion, arising under section 4 of the Employment Tribunals Act 1996. In the present case, the Tribunal was going to have to deal with a relatively complicated issue of law; that is to say, the alleged contractual obligation of an employer to inform an employee of pension rights. That is a relevant matter under section 4(5), namely the existence of a dispute of law making it desirable for the chairman to sit alone. In my judgment, it cannot be said that the chairman incorrectly exercised his discretion in deciding to sit alone: it was something which he was entitled to conclude was appropriate in this particular case. I can see no prospect of success if this particular application, 3118, were to be reinstated and it is therefore dismissed.
7. The other application which we have been able to deal with today is number 2000/6398. This is a matter which also relates to the pension position of Mrs Bari. It is said that the respondents failed to use their discretionary power to backdate her pension entitlement and that the Employment Tribunal was wrong to strike this out. Mr Bari has submitted this morning that there was no prejudice to the respondents from the failure to give the particulars. What happened was that the strike out had taken place and had been upheld by the Employment Appeal Tribunal in so far as it related to the failure of Mrs Bari to give certain particulars ordered by the Employment Tribunal of how the failure to use the discretionary power amounted to a breach of contract.
8. For my part I do not accept that there was no prejudice to the respondents from the failure to give these particulars. The issue of how the alleged failure amounted to a breach of contract was fundamental to this particular claim. There was an order that she should do so. She failed to meet the requirements of that court order and, in my judgment, the Employment Tribunal was entitled to strike out in the way that it did. I cannot see that there is any real argument that has any prospect of success in respect of this application.
9. That being so, I propose to refuse the application to reinstate number 2000/6398.
10. So far as the other remaining matter is concerned, 2000/6397, as I have already indicated, because of Mr Bari's ill health I propose to adjourn that for a further date to be fixed. I only hope that the pains which he was suffering this morning prove to be temporary and that he has not suffered any illness of any gravity as a result of the hearing here this morning.
ORDER: Applications 2000/3118 and 2000/6398 refused. Application 2000/6397 adjourned, and reserved to Keene LJ.